ADVOCACY THE JUDGE’S VIEW: SERIES 3 PART 7: LADY JUSTICE MACUR: NOT DIVERTING FROM A SCRIPT AND STATEMENTS OF PRINCIPLE THAT POSE AS QUESTIONS

In this post I am recommending you read an interview with Lady Justice Macur by the Law Society “the art of good advocacy”. This is an interview following a seminar with the same name given in April 2016. Remember these are selected highlights, there is no substitute for reading the original.

“One of the worst things I think is an advocate who is so anxious about a spontaneous performance or their ability to recall their learning or experience, that they will not be diverted from a script. It’s very obvious when a judge has such advocates before them that their thought processes are not so keen as they could be, and they offer less assistance to the court.”

ADVOCACY IS AN ART AND NOT A SCIENCE

It is difficult to learn to be an advocate by rote.

“It’s often a process of accumulating personal experiences, observing other advocates, different judges and court settings, and appreciating what works best.”

CONTINUAL LEARNING IS ESSENTIAL

“I don’t think that any advocate stops learning their trade. There is always something new to learn in ongoing daily court life, even if it’s sitting alongside another advocate and thinking ‘that was a really good way of doing that’, or ‘that went down badly, I won’t do that’. You should always be open to ways of improving your presentation and practice”

FLEXIBILITY IS THE KEY

Lady Macur states flexibility is the key.

Every advocate has to be able to react to the moment.

Things do not follow a set pattern in the courtroom.

You need to be able to think on your feet

SOMETIMES YOU ARE ON A “NO HOPER”

You have to be able to stand back from the fray and look at things objectively.

By making a realistic and objective assessment you are in the best position to advance your case.

“SMELL THE WIND”

A flexible approach is essential.

“Other advocates perhaps don’t appreciate that they need to have a flexible approach – and these advocates tend to be the ones who have their heads down in court. They will go through a set of notes without listening to a question and answering it, and they fail to respond to an ever-changing and dynamic courtroom. I think a courtroom situation is by and large dynamic, and you have to be able to respond to and thrive within it.”

KNOW THE DIFFERENCE BETWEEN ADDRESSING A JUDGE AND A JURY

Advocates sometimes forget the difference and “advocate their cause as though the bench has no prior experience of litigation or the vagaries of life”.

PUTTING FORWARD STATEMENTS OF PRINCIPLE AS “QUESTIONS”

When asked about common mistakes that advocates make Lady Macur states:

“I used to see an unfortunate trait in advocates of not asking questions of witnesses in an acceptable form, and dressing up quite long-winded statements of principle as a question by just tagging on at the end ‘do you agree’ or ‘isn’t that so’ etc. “

She gives the advice:

“It pays to remember that when asking a question to obtain a fact, the fact will often be better obtained by being direct, usually in the first person, and without calling on the witness to comment. The time for comment is in closing submissions, not when you are embarking upon cross-examination, examination in chief or re-examination. You will not benefit by a witness commenting on whether or not your question is valid.”